S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1407--A
    Cal. No. 265

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 7, 2011
                               ___________

Introduced by Sens. GOLDEN, DeFRANCISCO, GRIFFO, JOHNSON, LANZA, LARKIN,
  LAVALLE,  MAZIARZ,  SALAND -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes -- reported  favora-
  bly  from  said committee, ordered to first and second report, ordered
  to a third reading, amended and ordered reprinted, retaining its place
  in the order of third reading

AN ACT to amend the penal law, the  vehicle  and  traffic  law  and  the
  general  business law, in relation to criminal use of a firearm in the
  first degree and to repeal certain provisions of the penal law  relat-
  ing thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 265.09 of the penal law, as amended by chapter  650
of the laws of 1996, is amended to read as follows:
S 265.09 Criminal use of a firearm in the first degree.
  (1)  A  person  is  guilty  of  criminal use of a firearm in the first
degree when he OR SHE commits any [class B violent] felony  offense  [as
defined  in  paragraph  (a)  of subdivision one of section 70.02] and he
[either:
  (a) possesses a deadly weapon, if the weapon is a loaded  weapon  from
which a shot, readily capable of producing death or other serious injury
may be discharged; or
  (b)]  OR  SHE  displays  what appears to be a pistol, revolver, rifle,
shotgun, machine gun or other firearm.
  Criminal use of a firearm in the first degree is a class B felony.
  (2) Sentencing. Notwithstanding any other  provision  of  law  to  the
contrary, when a person is convicted of criminal use of a firearm in the
first  degree  as  defined in subdivision one of this section, the court
shall impose [an additional] A consecutive sentence of five years to the
minimum term of [an indeterminate] THE sentence imposed on the  underly-
ing  [class B violent] felony offense where the person convicted of such

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD04651-02-1

S. 1407--A                          2

crime displays a loaded weapon from which a  shot,  readily  capable  of
producing  death  or other serious injury may be discharged, in further-
ance of the commission of such crime, provided, however, that such addi-
tional  sentence shall not be imposed if the court, having regard to the
nature and circumstances of the crime and to the history  and  character
of  the  defendant, finds on the record that such additional consecutive
sentence would be unduly harsh and that not imposing such sentence would
be consistent with the public safety and would not deprecate  the  seri-
ousness of the crime.  Notwithstanding any other provision of law to the
contrary, the aggregate of the five year consecutive term imposed pursu-
ant  to  this  subdivision  and  the minimum term of the [indeterminate]
sentence imposed on  the  underlying  [class  B  violent]  felony  shall
constitute  the new aggregate minimum term of imprisonment, and a person
subject to such term shall be required to  serve  the  entire  aggregate
minimum  term  and shall not be eligible for release on parole or condi-
tional release during such term. This subdivision shall not apply  where
the  defendant's  criminal liability for displaying a loaded weapon from
which a shot, readily capable of producing death or other serious injury
may be discharged, in furtherance of the commission of crime is based on
the conduct of another pursuant to section 20.00 of [the penal law] THIS
CHAPTER.
  S 2. Section 265.08 of the penal law is REPEALED.
  S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
as amended by chapter 405 of the laws of 2010, is  amended  to  read  as
follows:
  (b)  Class  C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision;  aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated  manslaughter  in  the second degree as defined in section 125.21,
aggravated sexual abuse in the  second  degree  as  defined  in  section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, gang assault
in  the second degree as defined in section 120.06, strangulation in the
first degree as defined in section 121.13, burglary in the second degree
as defined in section 140.25, robbery in the second degree as defined in
section 160.10, criminal possession of a weapon in the second degree  as
defined  in  section  265.03,  [criminal  use of a firearm in the second
degree as defined in section 265.08,] criminal sale of a firearm in  the
second  degree  as defined in section 265.12, criminal sale of a firearm
with the aid of a minor as defined  in  section  265.14,  soliciting  or
providing support for an act of terrorism in the first degree as defined
in  section  490.15,  hindering  prosecution  of terrorism in the second
degree as defined in section 490.30, and criminal possession of a chemi-
cal weapon or biological weapon  in  the  third  degree  as  defined  in
section 490.37.
  S  4.  Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 405  of  the  laws  of  2010,  is
amended to read as follows:
  (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
subdivision one and subparagraph (i) of paragraph (c) of subdivision two
of this section that result in disqualification for  a  period  of  five
years  shall include a conviction under sections 100.10, 105.13, 115.05,
120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
125.13,  125.14, 125.40, 125.45, 130.20, 130.25, 130.55, 135.10, 135.55,
140.17, 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10,  220.06,
220.09,  220.16, 220.31, 220.34, 220.60, 221.30, 221.50, 221.55, 230.00,

S. 1407--A                          3

230.05, 230.06, 230.20, 230.25, 230.30, 230.32, 235.05, 235.06,  235.07,
235.21,  240.06,  245.00,  260.10, subdivision two of section 260.20 and
sections 260.25,  265.02,  265.03,  [265.08,]  265.09,  265.10,  265.12,
265.35  of  the  penal  law or an attempt to commit any of the aforesaid
offenses under section 110.00 of the penal law, or any similar  offenses
committed  under  a  former  section  of  the penal law, or any offenses
committed under a former section of the penal law which would constitute
violations of the aforesaid sections of the penal law, or  any  offenses
committed  outside  this  state which would constitute violations of the
aforesaid sections of the penal law.
  S 5. The opening paragraph  of  paragraph  (f)  of  subdivision  1  of
section  410 of the general business law, as added by chapter 509 of the
laws of 1992, is amended to read as follows:
  Conviction of any of the following crimes subsequent to  the  issuance
of  a  license  pursuant  to  this article:   fraud pursuant to sections
170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and  190.65;  falsifying
business  records  pursuant to section 175.10; grand larceny pursuant to
article 155;  bribery  pursuant  to  sections  180.03,  180.08,  180.15,
180.25,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
sections 120.05, 120.10, 120.11, 120.12;  robbery  pursuant  to  article
160;  homicide  pursuant  to  sections  125.25  and 125.27; manslaughter
pursuant to sections 125.15 and 125.20; kidnapping and  unlawful  impri-
sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
possession  pursuant to sections 265.02, 265.03 and 265.04; criminal use
of a weapon pursuant to [sections 265.08 and] SECTION  265.09;  criminal
sale  of  a  weapon  pursuant  to  sections  265.11  and 265.12; and sex
offenses pursuant to article 130 of the penal  law.  Provided,  however,
that  for  the  purposes of this article, none of the following shall be
considered criminal convictions or reported as such:  (i)  a  conviction
for  which an executive pardon has been issued pursuant to the executive
law; (ii) a conviction which has been vacated and replaced by a youthful
offender finding pursuant to article seven hundred twenty of the  crimi-
nal  procedure  law,  or  the  applicable provisions of law of any other
jurisdiction; or (iii) a conviction  the  records  of  which  have  been
expunged  or sealed pursuant to the applicable provisions of the laws of
this state or of any other jurisdiction; and (iv) a conviction for which
other evidence of successful rehabilitation to remove the disability has
been issued.
  S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1407--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 7, 2011
                               ___________

Introduced  by Sens. GOLDEN, AVELLA, BONACIC, DeFRANCISCO, GRIFFO, JOHN-
  SON, LANZA, LARKIN, LAVALLE, MAZIARZ, SALAND -- read twice and ordered
  printed, and when printed to be committed to the Committee on Codes --
  reported favorably from said committee, ordered to  first  and  second
  report,  ordered  to  a  third reading, amended and ordered reprinted,
  retaining its place in the order of third reading  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the  penal  law, the vehicle and traffic law and the
  general business law, in relation to criminal use of a firearm in  the
  first  degree and to repeal certain provisions of the penal law relat-
  ing thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 265.09 of the penal law, as amended by chapter 650
of the laws of 1996, is amended to read as follows:
S 265.09 Criminal use of a firearm in the first degree.
  (1) A person is guilty of criminal use  of  a  firearm  in  the  first
degree  when  he OR SHE commits any [class B violent] felony offense [as
defined in paragraph (a) of subdivision one of  section  70.02]  and  he
[either:
  (a)  possesses  a deadly weapon, if the weapon is a loaded weapon from
which a shot, readily capable of producing death or other serious injury
may be discharged; or
  (b)] OR SHE displays what appears to be  a  pistol,  revolver,  rifle,
shotgun, machine gun or other firearm.
  Criminal use of a firearm in the first degree is a class B felony.
  (2)  Sentencing.  Notwithstanding  any  other  provision of law to the
contrary, when a person is convicted of criminal use of a firearm in the
first degree as defined in subdivision one of this  section,  the  court

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04651-04-2
              

S. 1407--B                          2

shall impose [an additional] A consecutive sentence of five years to the
minimum  term of [an indeterminate] THE sentence imposed on the underly-
ing [class B violent] felony offense where the person convicted of  such
crime  displays  [a  loaded weapon from which a shot, readily capable of
producing death or other serious injury may be discharged,] WHAT APPEARS
TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR  OTHER  FIREARM
in  furtherance of the commission of such crime, provided, however, that
such additional sentence shall not  be  imposed  if  the  court,  having
regard  to  the nature and circumstances of the crime and to the history
and character of the defendant, finds on the record that such additional
consecutive sentence would be unduly harsh and that  not  imposing  such
sentence would be consistent with the public safety and would not depre-
cate  the seriousness of the crime.  Notwithstanding any other provision
of law to the contrary, the aggregate of the five year consecutive  term
imposed  pursuant to this subdivision and the minimum term of the [inde-
terminate] sentence imposed on the underlying [class B  violent]  felony
shall  constitute  the new aggregate minimum term of imprisonment, and a
person subject to such term shall be required to serve the entire aggre-
gate minimum term and shall not be eligible for  release  on  parole  or
conditional  release  during such term. This subdivision shall not apply
where the defendant's criminal liability for displaying [a loaded weapon
from which a shot, readily capable of producing death or  other  serious
injury may be discharged,] WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,
SHOTGUN,  MACHINE  GUN OR OTHER FIREARM in furtherance of the commission
of crime is based on the conduct of another pursuant to section 20.00 of
[the penal law] THIS CHAPTER.
  S 2. Section 265.08 of the penal law is REPEALED.
  S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
as amended by chapter 148 of the laws of 2011, is  amended  to  read  as
follows:
  (b)  Class  C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision;  aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated  manslaughter  in  the second degree as defined in section 125.21,
aggravated sexual abuse in the  second  degree  as  defined  in  section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, assault on a
judge as defined in section 120.09, gang assault in the second degree as
defined  in section 120.06, strangulation in the first degree as defined
in section 121.13, burglary in the second degree as defined  in  section
140.25, robbery in the second degree as defined in section 160.10, crim-
inal  possession  of a weapon in the second degree as defined in section
265.03, [criminal use of a firearm in the second degree  as  defined  in
section  265.08,]  criminal  sale  of  a firearm in the second degree as
defined in section 265.12, criminal sale of a firearm with the aid of  a
minor  as defined in section 265.14, soliciting or providing support for
an act of terrorism in the first degree as defined  in  section  490.15,
hindering  prosecution  of  terrorism in the second degree as defined in
section 490.30, and criminal possession of a chemical weapon or  biolog-
ical weapon in the third degree as defined in section 490.37.
  S  4.  Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 400  of  the  laws  of  2011,  is
amended to read as follows:
  (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
subdivision one and subparagraph (i) of paragraph (c) of subdivision two
of this section that result in disqualification for  a  period  of  five

S. 1407--B                          3

years  shall include a conviction under sections 100.10, 105.13, 115.05,
120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
125.40,  125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55, 140.17,
140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,  230.00,
230.05,  230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00,
260.10, subdivision two of section 260.20 and sections  260.25,  265.02,
265.03,  [265.08,] 265.09, 265.10, 265.12, 265.35 of the penal law or an
attempt to commit any of the aforesaid offenses under section 110.00  of
the  penal law, or any similar offenses committed under a former section
of the penal law, or any offenses committed under a  former  section  of
the  penal  law  which  would  constitute  violations  of  the aforesaid
sections of the penal law, or any offenses committed outside this  state
which would constitute violations of the aforesaid sections of the penal
law.
  S  5.  The  opening  paragraph  of  paragraph  (f) of subdivision 1 of
section 410 of the general business law, as added by chapter 509 of  the
laws of 1992, is amended to read as follows:
  Conviction  of  any of the following crimes subsequent to the issuance
of a license pursuant to this  article:    fraud  pursuant  to  sections
170.10,  170.15,  176.15,  176.20, 176.25, 176.30 and 190.65; falsifying
business records pursuant to section 175.10; grand larceny  pursuant  to
article  155;  bribery  pursuant  to  sections  180.03,  180.08, 180.15,
180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45,  200.50;
perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
sections  120.05,  120.10,  120.11,  120.12; robbery pursuant to article
160; homicide pursuant  to  sections  125.25  and  125.27;  manslaughter
pursuant  to  sections 125.15 and 125.20; kidnapping and unlawful impri-
sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
possession pursuant to sections 265.02, 265.03 and 265.04; criminal  use
of  a  weapon pursuant to [sections 265.08 and] SECTION 265.09; criminal
sale of a weapon  pursuant  to  sections  265.11  and  265.12;  and  sex
offenses  pursuant  to  article 130 of the penal law. Provided, however,
that for the purposes of this article, none of the  following  shall  be
considered  criminal  convictions  or reported as such: (i) a conviction
for which an executive pardon has been issued pursuant to the  executive
law; (ii) a conviction which has been vacated and replaced by a youthful
offender  finding pursuant to article seven hundred twenty of the crimi-
nal procedure law, or the applicable provisions  of  law  of  any  other
jurisdiction;  or  (iii)  a  conviction  the  records of which have been
expunged or sealed pursuant to the applicable provisions of the laws  of
this state or of any other jurisdiction; and (iv) a conviction for which
other evidence of successful rehabilitation to remove the disability has
been issued.
  S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.